Consultation on CPS Legal Guidance on Secondary Liability
Following a public consultation, the CPS has published a final revised version of its Legal Guidance on Secondary Liability (previously titled “Joint Enterprise”).
The interim guidance on which we consulted was published in July 2017, in response to the decision of the Supreme Court in R v Jogee; Ruddock v The Queen  UKSC 8; UKPC 7.
The Guidance sets out the main principles of secondary liability, as stated in Jogee and the subsequent Court of Appeal cases on secondary liability, R v Johnson & Others  EWCA Crim 1613 and R v Anwar  EWCA Crim 551.
We have published a Summary of Consultation Responses, which sets out the main responses we received and explains the changes we have made to the guidance in light of these responses.
The Supreme Court addressed the controversial doctrine of "parasitic accessory liability" (PAL). Where PAL applied, if two people (D1 and D2) set out to commit crime A, and in the course of that venture D1 commits crime B, D2 would be guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did.
The Supreme Court held that the law had taken a wrong turn 30 years earlier and was in error, as it equated foresight with intent to assist. The correct approach is to treat foresight as evidence of intent to assist D1 in crime B.
Questions for consultation:
In advance of its finalisation and implementation, we would welcome your views on four specific questions regarding the guidance:
- Does the section on Principles of Secondary Liability cover all the main principles accurately?
- Does the section on Conditional intent cases provide clear guidance that accurately reflects the law post-Jogee?
- Do the sections on charging group assaults provide clear guidance on how to approach charging decisions in such cases post-Jogee?
- Do you have any further comments on the Legal Guidance on Secondary Liability?
Any comments that you have outside these questions are also welcome.
How to Respond
Please note that all responses need to be received by 23:59 hrs on the closing date.
It would be helpful if you could give your feedback using the Secondary Liability Consultation response form.
Please return your completed feedback to firstname.lastname@example.org.
If you are replying by email, we would be grateful if you would not attach any other documents to the consultation response form document.
There are limits on the size of documents that we are able to accept and any completed response form document which has an attachment runs the risk of not being delivered. If you wish to send an attachment to us, or raise any queries that you have on the consultation, these can be submitted separately to the same e-mail address shown above.
We would prefer electronic submissions if possible but, if you would rather submit your feedback in hard copy it can be returned, by the same date, to:
Please include your name, organisation (if applicable), postal address, telephone number and email address in any response.
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